Opinion
2011-04-5
Bridget D'ORSA, appellant, v. Tina M. BRYAN, respondent.
Thomas P. Cleere, Ft. Salonga, N.Y., for appellant. Martyn, Toher & Martyn, Mineola, N.Y. (Christine J. Hill of counsel), for respondent.
Thomas P. Cleere, Ft. Salonga, N.Y., for appellant. Martyn, Toher & Martyn, Mineola, N.Y. (Christine J. Hill of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), dated May 24, 2010, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The Supreme Court correctly determined that the defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). In opposition, the plaintiff failed to raise a triable issue of fact.
The reports of the plaintiff's treating neurologist, Dr. Lewis A. Levy, and the report of the plaintiff's treating orthopedic surgeon, Dr. Robert Y. Garroway, as well as the plaintiff's hospital records, magnetic resonance imaging reports, and EMG/NCS reports, all were unaffirmed or uncertified, and thus, failed to raise a triable issue of fact ( see Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76;Rush v. Kwan Chiu, 79 A.D.3d 1004, 1004, 914 N.Y.S.2d 234;Bernier v. Torres, 79 A.D.3d 776, 776, 913 N.Y.S.2d 299;Zawaski v. Salzano, 77 A.D.3d 823, 824, 909 N.Y.S.2d 366;Vasquez v. John Doe # 1, 73 A.D.3d 1033, 1033, 905 N.Y.S.2d 188;Lozusko v. Miller, 72 A.D.3d 908, 908, 899 N.Y.S.2d 358).
The affirmation of Dr. Levy also failed to raise a triable issue of fact because it did not contain any medical findings contemporaneous with the subject accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d at 350–351, 746 N.Y.S.2d 865, 774 N.E.2d 1197;Rush v. Kwan Chiu, 79 A.D.3d at 1005, 914 N.Y.S.2d 234;*882Posa v. Guerrero, 77 A.D.3d 898, 899, 911 N.Y.S.2d 82).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.